Holding

A death certificate issued by respectable persons of the place of residence is inadmissible under Section 35 of the Evidence Act, and because Nanak Chand died after the Hindu Succession Act came into force, his widow and daughters are co‑heirs, rendering the substitution order of only the sons void.

Summary

Nanak Chand, a displaced person from West Pakistan, disappeared in December 1954. His brother Dewan Chand claimed that Nanak Chand had died and produced a death certificate issued by respectable persons of the place where the family had resided. The Additional Settlement Commissioner, relying on that certificate, substituted only the three sons as legal heirs, excluding the widow and three daughters, including Raj Rani. The Supreme Court held that such a certificate is not admissible under Section 35 of the Evidence Act and that the appellant was denied a hearing, violating natural justice. It further determined that Nanak Chand died after the Hindu Succession Act came into force, making the widow and daughters co‑heirs under the Mitakshara coparcenary rules, and apportioned the estate accordingly. The appeal was allowed, setting aside the earlier orders.

Issues considered

Whether a death certificate issued by respectable persons of the place of residence is admissible evidence under Section 35 of the Evidence Act.
Whether the appellant was denied a fair hearing in violation of the principles of natural justice.
Whether Nanak Chand died before or after the commencement of the Hindu Succession Act, affecting the rights of his daughters and widow.
How the share of a Mitakshara coparcenary property should be determined under Section 6 of the Hindu Succession Act and its Explanation I.

Legislation cited

Subjects

admissibility of evidencedeath certificateSection 35 Evidence Actnatural justiceHindu Succession ActMitakshara coparcenarysuccession rightsdisplaced persons

Judgment

•
•
763

. SMT. RAJ RANI A
v.
CHIEF SETTLEMENT. COMMISSIONER DELHI AND ORS .
•
May 3, 1984
B
[D A. QESAI, AMARENDRA NA TH SEN AND R.B .MISRA JJ .]

Evidence Act-S. 35-Scope of• . fJ·hether .certificate of _di:ath. given
by respectable persons of the place where decea.\ed once resided admis~ible in
evidence. Held no.

Nanak Chand, father of tbe appeJJ;nt, a displiced 'person from West c
Pakistan and having a verified claim in tlis name ·for _some Jand, disappeared
~ome time in December 1954. A report about his_ disappearance was
lodged by the aopellant's brother, Dewan Chand, Respondent No. 2·, with
t.he local. police-in Punjab. Tbe police made an enquiry ill the matter and
ultimately aave out that Nanak Chand could not be traced. In response to
a: notice isiiued ~o the year 19'6 in suo 1noto revij)ion in regard to.the verified
claim, jn tho absrnce or Nanak Charid, Dewnn· Chand appeared and alleaed D
t.bat Nanak Chand.bad died leaving behind three. sons il;icluding him as the
only Ie:gal heirS. Dewan Cbilnd produced a certificate to the effect that
Nanak ·Chand had died one year and 10 months prior to 25th Octo.bCr,
1956. The certificate \Vas issued on his request by some rfspectable
persons .of the place wber~ lbe family once resided. The· Additional
Settlement Commissioner, Delhi, by his order d1ted. 27th October, 1956
allowed the application for substitutiorl and directed the three sons to be
brougqt on record as legal repre~entative!'i of the ·deceased Nanak Chand
although NaAak Chand bad left behind three 1!ons, three daughters including
the·appellant and his widow. The appellant, in an attempt to have her
name substitufedt) · filed a revision application against the order ·of the
Additional Settlement Commissioner before the Chief Settlefnent Cornmis~
sloner under. s 5.of the Di~placed Persons· (Claims) St1pplementary Act,
1954 .. By his order dated 2.Sth September, 1965, the Chief SetUemeot F
.- Commissioner ccnfirrned the orde_r of the Additional Settlement Commis..
sioner dated 27th October, 1956 an~ dismissed the revision appli..
ca.tion of -the appe-llant without affording; an ·opportunity of being_ heard to
the rppella-nt. The High Co1,lr1 dismissed the appellanfs writ petition and
Letters_ Patent Appeal against the order o~ the Chief ·settlement Commis!!'ioner.
The High Court observed. 1J1at the Additional Settlement Commissioner
acted right11 in re1'ing upon 1he death ceftificate _prci;luc.ed by'"bewan·Chand G
and ~ubstilutir.g the sons .of Nnnak Chand as heirs of the deceased of his
~,riP,rd cl'aim. Hence this appeal.

• ,'\llowiog t!ie appeal, .

.,
•
•
764 SUPREME COURT REPORTS (1984) 3 S.C R, . - '1

A HELD.: A certificate given by re~pectable persons of :the place
. where the d>tceasrd once resided,- to say the least, is not ad.missible in
f:v.idence, Sec. ~5 of 1he evidence Act p~ovides that an elltry in any
public or other official book,·register, or record, stating a fact in issue or
reiCvant fd'ct, and mede by a public servant in the disCbarge of his official
duty,_ or by _any 01her person· in performance A of a duty, specially
enjoined by the law of the country in which such book, register or reco·rd iS
B kept; is itself a relevant fact. [769B·C] ·

In the instant case· a certificate by certain respectable person of tho
place whCre the family once resided does·not satisfy the fequirements of
s.·35 of the evidei;icC Act. Tberfl is no. p_roof th,at any statutory duty WM
cast upon the person issiiing the certificate to keep a record of birth 3nd
death .and- therefore, the certificate of death has- no evldeotiary value. · It
C. is Very · easy for .a·. person to obtain a deat-h certificate from 'the soca11ed
respectable persons in ordfr to grab the property.· If according to Dewan
Chand, Nanak Charid had died he~ust also indicate where did be die aD.d
it is the pl_ace. of .his· ~eath which will be _relevant and not the place of bis
birth or residence. The certificate obviously is not of -the· place where
:Nanak.Chand d~ed". The authorities have· graveJy-erred in relying upon tho
cortific,ate of death which was inadmissible in evidence. [769D·E) ·
D

To •ee whether daughters would be entitled to interest in the pro·
perty left by Nanak Chand will depend upon the death of Nanak Chand
before.. or after the enforcement of Hindu Suctession Act·and to decide as
to when'Nanak Chand died it was absolutely essential that an ·opportunity
Sbc;>uld have been .offered to the appellant in a~cordance with the principles
E of natural justice. [769H; 770A]

CiyIL APPELLATE JURiSDictioN Civil Appeal No. 485 of
1971.
•
From the Judgmeut and Order .dated the 29th January, 1970
of the .Delhi
'
High Court in Let ers Patent
.
Appeal
. No. 8/70.
.
D.D. Thakur, E.G. Agarwala and V.X. Pcnditia for the Appel· 1
!ant.

G Charnan Lal ltrora for the Respondent.
•
The. Judgment of the Court was delivered by

M1sRA, J. ·The. present appeal by certificate is directed against
\
the judgment of the High Court of Delhi dated 29th January, 1970 '
H in letttrs pattnt arperlccnJirrning the judgment and order of tho
· Je11rped Single judge of the High Court date\! 7t!i January, 1970,
•
RAJ RANI v. SETTLEMENT COMMR. (M;s~a, J.) 165

Nanak Chand, father of the appellant was a displttced person A
from West Pakistan where he had le!t agric\lltural lands· i~ village
Chhota Bhukh Auta(, tehsil Bahawal .Nagar, district Bahawalpur.
After the partition of the country his claim beating Index No. B/BP-
3/259 was verified ·in his name for 26 standard acres 12! units. Nanak
Ch!\lld disappeared sometime in December, 1954 and a r~port about
, his disappearance. was lodged. by the appellant's brother Dewan
·
• Ciiand, arrayed in this appeal as respondent No. 2, on 25th
·"'- December, t'954 with. the local police, Malhout, district Ferozepnr,
Punjab. An enquiry was made by the police in the matter and
ultimately the police gave out that Nanak Chand could not be
traced. 'C

In the year 1956 a notice was issued in suo moto revision in.
regard to the verified claim referred to above, .by the Additional
Settlement Commissioner, Delhi. to Nannk Chand, claimant. As
Nanak Chand could not and did not appear in compliance with the
notice, the. eldest brother of the appellant, namely, Dewan Chand,
appeared before the Additi~nal Settlement Commissioner, Delhi on
• o.ctober 25, 1956 and altegca that Nanak Chand had 'died leaving
behind thr~e sons, namely, Dewan Chand, Prabhu Dayal and Ashok
Kumar (minor) as the only legal heirs of the deceased .
•
E
The learned Additional Settlement· Commissioner by his order
dated 27th October, .1956 altowed the application for. substitution
and directed Dewan Chand, Prabhu Dayal and Ashok Kumar alone
. to .be brought 0n the record as legal represrntatives of the deceased
Nanak Chand, alth 0ugh Nanak Chand· had left behind the aforesaid
. three sons; three daughters, namely, Satnam' Devi, Laj,,;anti and F
Smt. Raj Rani, and h.is widow Smt. Chandan Bai. .
•
Prabhu Dayal; one of the three sons of Nanak Chand died in
1961 leaving behind his daughter Santosh Kumari. His .widow Smt.
Lajwanti applied·for being substituted as an heir of the deceased
G
alongwith her minor daughter Sailio;h Kumari. Jn 1904 the mother
of the; appetlant also ;ipplied to the Settlement Officer that she and
. her three d.aughte.rs may also be substituted· as heirs and legal repre-
sentatives of Nanak Chand· deceased regarding payment of·compel)- ·
sa(ion in re.spec! of the vorified claim They also prayed for
cond.o:nation of delay in fi]ing the application for substitution an(! H
f9r initiating proceedings under s. 9 of the Displaced Persons. •
'{Compensation aµd Rehabilitation) Act~ 1954. The Settleme11t
.
766 SUPR!!ME COURT REPORTS [l 9841 3 S.C.R.
. 1 ·'
A
OfficH cocerntd recomt~ended for condonation of delay in_ hfr report
dated 24th March, 1964 to the Regional Settlement Commissioner
Rajasthan with the_ delegated powers of Chief Settlement Commis:
sioner, Rajas!han, who by his order dated 6th April, 1964 condoned
the delay and directed ·that the case niay• be processed and finalised
accordiiig to rules.
B •
When the relevant -record was received by the M.O./S.O. >'
Rajasthau, the appellant's mother alleged that the previous order of
substitution of heirs of Nanak Cliand, deceasad, had been obtained
by fraud and mis-representation practised by her sous inasmuch as
. they did not disclose in their application for substitution the exis-
tence of the appellan,t, her mother and si"sters. · The M.0.-cum·S.O.
by his order dated November 16, 1964, dismissed the application of
the mother of the appellant on the ground that tho previous order
dated 27th Ocfober, _1956 passed by the Addition~! Settlement
Commissiner declaring only three sorts of Nanak Chand deceased as
his heirs, to the exclusion of deceased's. widow and daughters-was
never challeµged by way of an appeal or revision, so the said order
had assumed' finality. He, therefore, declined to· interfere and
refused to grant redress. The ntbther of the appellant on ' he•
own behalf and on behalf of . her three daughters, including · the
appellant,. filed an appeal in the Court of the Regional Settlement
Commissioner which came up before Shri S.S. Govilla, S.O. with
delegated powers of Regionat Settlement Commissioner (Rajasthan)
and he by his order dated 22nd December, 1964 C!ismissed the same.

. ., The mother of the appellant undaunted by the failures, filed a
revision petition before the Chief Settlement Commissioner, which
came up for hearing before Shri D.N. Vohra, Settlement Commis·
• sioner with delegated powers of Chief Settlement Commissioner,
and he also took the view that the order dated lg th December,
1954 passed by the Additional S~ttlement Commissioner had. become
"-· .
final and he had no jurisdiction to revise or amend the said order,
G and accordingly he dismissed the revision'. Thereafter the mother
moved the Central Government under~. 33 of the Displaced Persons
• (CQmpensation and Rehabilitation) Act, 1954 .!Jn. her own ~e~f as
well as on behalf of the appellant but the apphcat1on was _d1sm1ssed
by the Central Government, Ministry of Rehabilitiation. On 30tb:
August, !96S the appellant als_o filed a revision against the ordet of
H the Additional Settlement Commissioner before the Chief Settlement
Commissioner under. s. 5 of the ;:>isplaced Persons (Supplementary)
..
•

ilAJ RA!!I v. SETTLEMENT COMMR. (Misra, J.) 767.

Verification of Claims Act, 195~. but this also met with the same A.
fate on 25th September, 1965.without affording an opportunity of
being heared to the appellant.

The appellant eventu11ly filed a writ petition before the High
·Court. of Delhi giving rise to the present appeal against the orders
B
, dated 25th September, 196}, passed by the Chief Settlement Commis-
•
. ,,.l
sioner, Delhi whereby he CDnfirmed the ord<;r,dated 27th October,
1956 passed by the Additional Settlement. Commissioner, refusing to
substitute the appelhnt as legal heir of Nanak 'chand, deceased.
The. writ petition w.is dism'ssed by an order dated 7th January, 1970.
The appellant unsuccessfully filed a letters patent appeal which was C.
dismissed on 29th January, 1970. Feeling aggrieve<l the appellant
applied fot a certificat.e under Art. 133 of the Constitution, which
· waj grnnted. Thi> is how the appellant has come to this Court ..

It_ is cor(tended for the aJ?pe!lant that on 27th October, 1956
she was a minor when the order was. obtained by fraud and mis- D
represontation by Dewan Chand, without disclosing· the names of
. other heirs viz. the appel.lant and her mother and two sisters. The
appellant file~ Nvision petitfon under s. 5 of Claims (Supplementary) .
Act (12 of 1954) on 27th of November, 1964 before the learned
Chief Settlement Commissioner, who without hearing the appellant
an!i without affording her any opportµqity to substantiate her pleas, 11
dismissed the revision petition on 25th September, 1965. This was
in Viol.ation of the principles of f)atural justice.

The High Court chose to rely on the deposition ofDewan
Chand, respondent No. 2, to the etfeat that his father had been. F
murdered and he produced a certificate of death before the Chief
Settlefrlent Commissioner certifying that Nanak Chand d~d one
year ten months prior to 25th October, 1956 and this certificate is
) alleged to have been .given on the applic;ition flied by Dowan Chand
before the Pr~sident of the Municipal Committee, Abohat. The
learn.e.d Single Judge ofthe High Court observed that the Additionah •
Settlement Commissioner acted rightly in relying upon the cirtificate
and substituting the sons of Nanak Chand as heirs of the deceased
to his verified claim, on the ground that as Nanak Chand had died ,
·prior tci the enforcement of the Hindu Succession· Act his daughters.
~ould not be heirs and could not succeed to the property of their
·father. U
••

168' SUPREME COURT REPORTS (1984] 3s .c.R.

A Shri Thakur, learned counsel for the appellant strenuously
contended ·that if he had been given an opportunity by the <;hief
Settlement Commissioner he would have been able to produce the.
evidence before him. that on the own admission of Dewan Chand:
Nanak Chand had dlsappeared sometime in December, 1954 and
a report about his disappearance was lodged by Dewan Chand .on
B 25th December, 1954 with the local police; Malhout, di'stric.t
. Ferozeimr and a;, a result of. an enquiry. the police gave out that
Nanak Chand could riot be traced. This evidence could not be
. · produced before the Chief Settlement Commissioner be~ause the
· appellant was not lieard, · ·

The decision of this case hing~ on the question whether
. Nanak Chand had died before or after the enforcement of tJ.e Hindu
Succession Act.· If he died· before the enforcement of the Hindu
Succession ·Act obviously the daughters could not get any sh&re in
the property left by Nanak Chand. If on the_ otlrer hand he died
D after the enforcement of the Hindu Succession Act, the daughters
would be equally entitled to .a share in the property le ff by Nanak
Ch~nd. In 2.ny case the widow of Nauak Chand would be entitled
to a share in the property irrespective of the fact whether Nanak
Chand died before or after the Hindu Succession Act. This aspect
of the case has been completely lost sight of by the High Court.
E' · If Nanak Chand disappeared in December, 1954 on the report of
D'wan Chand himself and has nofbeen heard of for seven years by
those who would naturally have heard of him if h.e has been alive,
there could be raised. a· pre·sumption Of death when· the que~tion
arises.. But in the instant case no presumption arises as the question
. arose just two years after the date of ·disappearance.
F
As regards· the actual date of death the High Court dealing with·.
the death certificate observed as .follows : ·

"A:s an administraiive officer doing quasi-Judicial work,
the Additional Settlement Commissioner was entitled to give
credence to the death certificate. He was bound· only to
make a preliminary enquiry as to who were the heirs of.
• Nanak Chandc He did not hove to.decide that question
finally. For a preliminary enquiry the death certificate
singed by the respectable persons .of the place where the
famiiy resided was sufficient. therefore,· the Additional
Settlement Commissioner was satisfied that the substitution
· RAJ !\AN! v. SETTLEMEtlT COMMR. (Misra, J.) 769.
of the sons of NanakChand in place .of th.e deceased would A ..
not prejudicially affect his daughter. It was not, therefore,
necessary ·for him to hwe given an oppJrtunity to the
daughter of being heard under sub-section (2).of section 5
of •the Displaced . Persons (Claims) ·Supplementary . Act,
1954."
B

.' A certificate given. by cespectable persons, of the place where
the deceased once resided, to say the least, is not admissible in evi-
dence. Sec. 35 of the evidence Act provides that ·an entry in any
public or other official book, register, or record, . st1ting ·a fact ,in
issue or relevant fact, and.made by a public servant in the discharge· c·
of.his ·official duty, or by any othor person in performance of a duty
specially enjoin'd by the law of.the co1ntry in which such book,
register or record is kept, is itself a relevant fact.

In the instant case a certificate by certain respeciable person
of the place where the family oncJ re.sided does not satisfy the D
requirments of s. 35 of the evidence Act. There is n) proof that any
statut9ry duty was cast upon the person issuing the certificate to
keep a .record of birth and death and therefore, the certificate of
death has no evidentiary .value. lt is very easy for a person to obtain·
death. certificate from the socalled. respectable persons in order to
E
grab .the property. If according to Dewan Chand, Nanak Chand
had died he must also indicate where did he die and itis .the place
of his death which-will be relevant -and not the place of his birth or
residence. The certificate obviously is not of the place where
Nanak Chand died. We.are of the view the authorities have gravely
• '.erred in relying upon the certificate· of death which was indmissible
• F
!n ((Vidence,
'
·The High Oiurt repelled the·contcntion raised on behalf of the
appellant th~t opportunity. should have been given to the ·appellant
under s. 5 (L) of the Displac~d Persons (Claim) Supplemeqtary Act,
1954 merely on the assumption that Nanak Chand had died muc.h G
before the enforcement of the Hindu Succession Act and, therefore,
no. prejudice has been caused to the daughters as they would not be··
ari heir._ It is simply begging the question. Whether daughers
would be entitled to an interest in the propert; left by Nanak Chand
• will depend upon the. deatli of Nanak Chand ·before or after the
enforcement of Hindu. Succession Act. It .wasan important question, H
. therefor a, to decide whether Nanak Chand died before th\i enforce .
•
•
710 SUPREME COURT REPORTS [1984] 3 S;C.ft.

A ment of Hindu Succession Act or not.· For that it was absolutely
'essential that an opportu"ity should h1;e been afforded to the
appellant in accordance with the principle of natural justice. As
observed earlier, if ail opportun'ity had been. given w the appellant
she would have produced the admission of Dewan· Chand that his
father Nanak Chand dtsappearcd sometime in December, I J54 and
B . as a result of an enquiry by the police, no trace of him could be

•
>•
found out.

The finding th'.lt Nanak Ch1nd died before the enforcement of
the Hindu Succes>ion. Act, based on the death certificate, cannot be
sustained for .a moment as it is based on an inadmissib\e piece of
evidence. If that finding is set aside, there is no escape from the
conclusion that Nahak Chand died not before but after the enforce-
ment of the Hindu Success.ion A<;j, that is, after 25th October, 1956.

There is no dispute that Nanak Chand died leaving behind . ·l. .
D his widow,. three sons and three danghters. Dewan Chand fraud;;.
fontly obtained on 'order alleging ·that Nanak Chand died
leaving behind only .three sons. · If Nanak Chand died after the
enforcement of the. Hindu. Succession Act, as found ear1ier,
.obviously, his widow, three sons and three daughters wo~ld succeed
. to his interest in equal shares, which would work out to I/7th. Now
E the question• arises what was the. interest of Nanak Chand at the
ti.ne of his death. As the· prop_erty in question was · Mitaksharil
coparcenery P'.operty, his interest wonlcf be determined in ace 0rdance
with the provisions of Explanation I of s. 6 of the Hindu Succession
Act, It would be. appropriate at this stage lo read s. 6. insofar as •
it is material for the purpose Of this case :
F
"6. When a male Hindu dies after the commencement
of this Act, having at the time of his death an interest in a
Mitakshara copareenery property, his interest in the pro-
perty, shall devolve by survivorship npon the sntviving
·G members of the coparcenery and not in aceordance with
this Act :

Provided that, if the deceased had left him. surviving a .
female relative specified in Class I of the Schedule or a male .
relative, specified in that class who claims, through such
H female relative, the interest of the. deceased in the Mitak- .\.
shara coparcenery property shall devolve by testamentary
RAJ ,RANI V. SETTLEMllNT C0M.Md. (Mi;ra, J.) ?1[

or intestate succ;ssion, as the casi may be,. under this Act A
and..not by survivorship.

·Explanatio!l' I.-For the purposes of this section,. the
interest of a Hindu Mitakshara coparcenery shall be deemed
to be the share in th' property that would have been_
B
allotted to him if a partition of the property had taken
place immediately before his death, irrespective of wheth~r
he was entitled lo claim partition· or not."
'
The interest of Nanak Chand shall bo 'deemed to be the share
in the prop,,ty that would han' bem allotted to him if a partition
ofthe property had taken place im1mdiately before his death irres·
pective c;>f wheth'r he wai entitled t_o claim putition or not. In
view of Explanation I ofs. 6, Nanak Chand would hwe got I/5th
interest on p>ttition ·between him 11nd h,s ivife and three so1is. If
. .
once -the intere>t of Nanak Chand is determined to be I·/ 5th before
hii. death, his itµerast would devolve upon his widow, three sons · D
and three daughters equally and thus the share of each one of them
would be 1/5 Xl/7, that is, i/35theach. The. claim of these heirs.
cannot be denied merely because some of them have not advanced
the claim. When the questfon of determination of ~hare among the
heirs crops up before the Court, the Court hai to see that.every heir
for
gets his duo. Shri ·Itror,1 appearing the. respond,nts could not E
·successfully meet the point raised on behalf of the appellant.

· For the foregoing discussion the appeal must succeed and it
is accordingly allowed atrd the judgment of the High Court as well.
as of the authorities below are setjaside and share~ of the lhree sons,
three daughters and.the widow are determined as follows: Each of F
the three sons-1/35; each of the hree daughter;-1/35; the widow-
J/35+1/5. As the widow has inherited the interest of her husband
after his death her _share would be augmented by 1/5. Therefore,
) her share would come to 1/35+ l/5.'...8/35.

G
. In the circumstances of the case we direct the parties to bear
their own costs.

H.S.K. Appeal allowed •

.